Five Management ‘Musts’

Management is difficult, particularly in times of rapid change. This article provides five quick tips to help managers get the job done, better. Indeed, a manager’s ability to help their organisation navigate commercial risks and opportunities will depend on their ability to manage effectively in the first place.

 

1. Set the scene

Context is important, as is communicating that environment to your team. Reality is, we operate in a VUCA world – one that is Volatile, Uncertain, Complex and Ambiguous. Acknowledging that reality with your team helps set the scene for your role within your team. It also provide an opportunity to emphasise what is important. All managers should be mindful of how the VUCA world impacts their teams, stakeholders and, of the upmost importance, their customers or clients.

2. Communicate effectively

A good manager wins over hearts, heads and hands. That is, they communicate on different levels to take into account people’s emotions and their thinking while appealing to their practical side too. To do this requires active listening to all views and promoting robust discussion. For example, if one person is dominating a team meeting, it may mean that others are less inclined to voice an idea. Managers should not shy away from tough discussions either. In fact, facilitating those difficult decisions – or a willingness to engage an independent person to facilitate those discussions – ensures relevant views are heard and builds trust within your team.

3. Facilitate processes

At the end of the day, your role is to get things done, consistent with the values of your organisation. To do this, managers require processes. Processes are interrelated steps or decisions that have an input and an output. Across a department or organisation, you are likely to have many connected processes. Without processes, confusion and distrust is highly likely. The best managers facilitate processes that allow autonomy, have been tested and are continually reviewed. When reviewing your processes, have the user at the forefront of your mind and consider how the process will be implemented. A good manager will be open to using technology to add value and quality to processes, whilst balancing the need not to over-engineer steps.

4. Have methods for decision making

We all have bias. The ideal manager is aware of their bias. Managers must acknowledge that they don’t have all of the answers and that their views will be impacted by their experiences. Managers should test their and their team’s assumptions by using methods for decision making. Those methods should focus on who has the right skills to contribute, rather than a simple reliance of organisational hierarchy. While consensus decision making is the most widely used method, managers may want to also consider other processes like devil’s advocacy or dialectical inquiry. Ultimately, a sound decision will need to be a made in a timely manner, and a good manager will be able to stand by their decision not just because they think it is right, but by reference to the method (or methods) adopted.

5. Learn

Circumstances change rapidly and requires ongoing review. Effective managers are open to learning new skills and promoting organisational learning. This is not just about signing yourself or individuals up for courses. Neither is this about finger pointing – that will only serve to create fear and cause distrust and dislike for management. Rather, the role of a manager is to seek out opportunities for the organisation to learn and grow. Every setback, flaw, dispute or wrong decision is an opportunity for the organisation to get better. This is a feedback culture, and is most fruitful when a manager leads by example by creating opportunities to receive feedback on their own performance and that of their team. For example, be open to asking a trusted mentor for help or advice. It is okay not to know the answer, and you should be clear with your team when this is so. This personal commitment by a manager compliments consistent de-briefs within and between teams. If managers and teams wait for the next client satisfaction survey or staff performance cycle, the opportunity to meaningfully institute change may have been lost.

MPS Law is committed to assisting organisations – including their managers – get to where they want to go, though commercial advice and dispute resolution services. MPS Law can also assist organisations to improve by conducting organisational and governance reviews. If MPS Law is not best placed to provide assistance, we can provide referrals to reputable professionals who may be better placed to provide assistance.

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

 

Michael Pagsanjan is the Principal at MPS Law and holds directorships with not-for-profit companies. He has studied leadership at RMIT University and management at Harvard Business School.

Guidance note on power in negotiations

Negotiations are often seen as an exercise of power between parties; one party’s power relative to the other can more likely than not influence what outcome both can expect from the negotiation table.

 

How then should a negotiator approach the negotiating table with a party that appears to be more resourced, more connected or otherwise in a more powerful position?

This article provides some background to power in negotiations and briefly explores the concept of principled negotiations.

 

The powers of a negotiator

Roger Fisher identifies six categories of power that can be used to enhance a negotiator’s strategy, regardless of the relative power of the other party.

The categories of power are as follows (see Roger Fisher, ‘Negotiating Power: Getting and Using Influence’, The American Behavioural Scientist, 27(2) (1983), 153):

  1. the skill and knowledge to understand what we and the other party want out of the agreement and what opportunities are available to us;

  2. relationships that provide us a positive rapport with the other party;

  3. knowledge of the best alternative to a negotiated agreement (BATNA), or what opportunities we have to look forward to if we walk away from the negotiation table;

  4. an elegant solution that provides options to satisfy the interests of both parties;

  5. legitimacy in our proposals, so that they are perceived as ‘fair’; and

  6. an affirmative commitment to do positive things for the other party.

 

Principled negotiation

These categories of power become essential elements of a negotiation strategy in what Fisher and Ury refer to as principled negotiation (see Roger Fisher and William Ury, Getting to Yes: Negotiating an Agreement without giving in, UK: Randmon House, 1992, xiv), also known as interest-based negotiation. It could also be referred to as a win-win negotiation. Principled negotiation is conceived in contrast to more adversarial modes of negotiation, in which parties compete in a zero-sum game to acquire a larger slice of the same pie. Instead, principled negotiation aspires to find situations of mutual gain, where both parties can cooperate to identify solutions that meet their respective interests.

In a principled negotiation, a skilled negotiator can use the categories of power identified above to improve the position of their client (or their own position), and better prepare themselves against perceived power imbalances that may exist between the parties. The ability to make optimal use of these categories is particularly important where relations of power are dynamic, and skilled negotiators should be prepared to make the most out of opportunities that arise from these changeable relations of power.

A skilled negotiator should particularly be prepared to approach the negotiation table with a clear sense of their client’s BATNA. Fisher and Ury emphasise that a good foreknowledge of your client’s BATNA is important in understanding your client’s position, opportunities and limitations (see Fisher and Ury, 110). In other words, preparation is key. These opportunities and limitations will in turn inform what you want. Clear objectives are essential. If there are generous opportunities for you or your client outside of the negotiation, you are unlikely to accept an unfavourable offer. Likewise, if you or your client is unlikely to find their interests met elsewhere, you will not be so quick to walk away from the negotiation table.

Be mindful, however, not to underestimate your power in negotiations. Any party that has an opportunity for a benefit or a risk of an adverse consequence has a vested interest in negotiations. A negotiators role is to identify and test that interest, to explore possible win-win solutions.

Of course, power is just one factor in negotiations. Complex negotiations are dynamic and a good negotiator will help you prepare by identifying opportunities in your negotiation process.

MPS Law provides expert negotiation services to clients in a wide range of matters, including in relation to commercial matters and native title. More information about native title negotiations is available here.

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

 

Note on the Federal Court consent determination for the landmark Yamatji Nation settlement

On 7 February 2020, the Federal Court of Australia recognised the native title rights of the Yamatji People in a special hearing in Geraldton, Western Australia.

 

The hearing marks the conclusion of an intensive two-year negotiation process and five-years of mediation to address claim overlaps, resolving two-decade old native title claims in Western Australia’s mid-west, covering 48,000 square kilometres.

The hearing proceeded as scheduled, with an overlapping native application filed at the last minute, dismissed by the Federal Court on 6 February 2020.  The hearing was attended by several hundred people, including both the State and Federal Ministers for Indigenous Australians.

MPS Law has represented the Widi native title claimants and assisted the Traditional Owner Negotiation Team throughout the negotiations with the State of Western Australia.

Michael Pagsanjan is gifted a painting of country from clients, the Widi Mob Applicant, Yamatij people in Western Australia’s mid-west

Michael Pagsanjan is gifted a painting of country from clients, the Widi Mob Applicant, Yamatij people in Western Australia’s mid-west

The associated native title agreement, which has been confidential until now, is the new yardstick for agreement making with First Nations. The mutual commitments are ground-breaking. Examples of innovation include:

  • An outcome that sees the recognition of native title rights as well as benefits that are usually reserved for alternative settlements, like land hand back of over 150,000 hectares and joint management of over 450,000 hectares of conservation land;
  • Agreed heritage management processes;
  • Allocation of water to traditional owners for use or trade;
  • Ability to partner with government on key projects and decision making that impact Yamatji people;
  • Using best practice standards for self-governance, including redefining the use of charitable trusts;
  • Economic development opportunities like business incubation units, residential development opportunities, tourism development, strategic economic development land, and revenue streams from mining activity; and,
  • The way the agreement was considered by native title claimants.
Michael Pagsanjan and Edward (Ted) Mullalley, following the execution of the landmark Indigenous Land Use Agreement.

Michael Pagsanjan and Edward (Ted) Mullalley, following the execution of the landmark Indigenous Land Use Agreement.

The compensation settlement sum of over $400 million dollars is significant, and fully resolves the State of Western Australia’s native title compensation liability. Pursuant to the Native Title Act 1993 (Cth) native title holders are entitled to compensation, in some circumstances. Native title compensation is a relatively under-developed area of the law, and the resolution of compensation liability is positive outcome. However, it is the intangible commitments that will likely have the most significant, longer term, impact.

This outcome is testament to the success of mediation and what can be achieved by agreement making. Several years ago, the region was a hotpot of claim overlaps, some claims were unrepresented and there were instances of non-compliance with Court orders. However, claim groups worked to unite and committed to negotiate, and have now shown compromise to reach a just outcome.

In submissions to the Federal Court, MPS Law Principal Michael Pagsanjan acknowledged the tireless work of many, including clients:

Thank you to my clients, the Widi Mob, and the traditional owner negotiators and native title claimants.

It has been an honour to be on this journey with you.

You have strong leaders in your community, including the Traditional Owner Negotiating Team, the named Applicants and your working groups. You should acknowledge these leaders. They walk in the footsteps of many elders who walked before you but did not have the opportunity to celebrate today’s recognition, which is that you are the right people for country, you have the right to look after your country, and that recognition will not be taken away from you, or from your future Yamatji leaders.

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Top row (left to right): Honourable Ben Wyatt MLA, Simon Hawkins (YMAC CEO), Tony Lee, Shirley McPherson Bottom row (left to right): Lorraine Whitby, Honourable Ken Wyatt AM MP, her Honour Justice Debra Mortimer, Kathleen Pinkerton, Michael Pagsanjan.

Top row (left to right): Honourable Ben Wyatt MLA, Simon Hawkins (YMAC CEO), Tony Lee, Shirley McPherson

Bottom row (left to right): Lorraine Whitby, Honourable Ken Wyatt AM MP, her Honour Justice Debra Mortimer, Kathleen Pinkerton, Michael Pagsanjan.

Re-inclusion on list of Native Title Mediators

MPS Law Principal Michael Pagsanjan has been re-included on the Federal Court list of Native Title Mediators.

 

Mediation of native title matters are often conducted by Federal Court Registrars. However, there can be a need to refer mediation to external practitioners. Michael’s inclusion on the list allows the Federal Court to engage Michael as an external mediator, where appropriate and subject to conflicts of interest.

Mediation can be particularly helpful in native title claims by ensuring that the parties have full control of any agreed outcomes.

The list is maintained and published by the Federal Court of Australia. Following a significant number of expressions of interest, Michael’s application was successful to be re-included on the list. Michael’s experience with governance, compensation, land access and native title claims provide a valuable skill set as a native title mediator. Mediators must be neutral and should have necessary qualifications and experience. 

Michael is one of twenty-two specialists listed by the Federal Court of Australia, with two specialists listed from South Australia.

The next substantive review of the list will be in the 2021/2022 financial year.

For more information, please contact Michael Pagsanjan at michael@mpslaw.com.au.

Settlement authorised by community

A landmark settlement has now been authorised to resolve several native title claims in Western Australia’s mid-west.

 

On 8 and 9 December 2019, all people who hold or who may hold native title authorised the resolution of native title claims, at meetings held in Geraldton.

Details remain confidential and the matters continue to be the subject of mediation, but according to the joint report filed in the Federal Court, key topics in the agreement are:

  1. Recognition, including the recognition of native title rights and other statements on recognition;
  2. Governance structures, including mechanisms for partnerships with Government and the establishment of a single corporate entity and associated entities to represent all Traditional Owners within the settlement area;
  3. Land base, including the transfer of land in freehold or as reserves and agreements about water;
  4. Economic base, including land for economic development, funding for economic development and support for training and employment;
  5. Conservation estate, including the creation of jointly managed parks and the establishment of a ranger program; and
  6. Heritage and culture, including agreements about heritage management.

MPS Law has acted for the Widi claimants and Michael Pagsanjan has provided extensive legal and negotiation services to the traditional owner negotiators since the commencement of negotiations.

“Never before have native title claim groups embarked on such an ambitious process, including the innovative way information was presented and discussed before decision making.” says Mr Pagsanjan.

”All participants should be applauded for the effective deliberation of complex legal issues. It is the result of several years of mediations conducted by the Judicial Registrar of the Federal Court of Australia and culminated in the meetings in Geraldton earlier this week. The respect and unity displayed by native title claim groups is testament to the strength of the laws and customs of traditional owners. The outpouring of interest and support for the settlement, inspired by elders and community leaders – some of whom recently passed away – is truly awe-inspiring. I congratulate the parties and look forward to watching the next chapter of self-determination unfold, including the native title consent determination in 2020.”

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Summary of native title developments from 2019

As we approach the end of 2019, MPS Law provides commentary on recent developments in native title law.

BY KAI SINOR

Statistics (as at October 2019)

  • 208 outstanding native title claims
  • 3 current native title compensation claims
  • 7 active revised native title determination applications
  • 477 determinations of native title, with 397 that native title exists.
  • 381 determinations by consent, and 48 litigated determinations

Law reforms

In December 2018, the Commonwealth Government introduced the Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Bill (the CATSI Reform Bill) was introduced to Parliament.  While the bill was not passed before Parliament dissolved for the 2018 federal elections, the changes proposed in the bill confirmed a number of changes discussed with stakeholders during public consultations in 2017.

In October 2019, the Native Title Legislation Amendment Bill (NTA Amendment Bill) was reintroduced to Parliament.  The NTA Amendment Bill adopted several options for reform that were proposed during consultations on reform of the Native Title Act 1993 (Cth) (NTA) in 2018 and proposed a number of new amendments, including provisions to allow historical extinguishment in national and state parks to be disregarded where parties agree, conferral of a new statutory function for the National Native Title Tribunal, and extension of the rule that the applicant can act by majority as the default rule for decisions involving things that the applicant is required, or permitted, to do under the NTA.  The Senate Legal and Constitutional Affairs Legislation Committee is due to report back to Parliament on the Bill in February 2020.

Recent decisions

There have been a number of notable decisions in relation to native title. These decisions are summaried below.

DECISIONS ABOUT COMPENSATION

Timber Creek Decisions

The first litigated compensation decision that resulted in an order of compensation was made by Mansfield J on 24 August 2016 in Griffiths v Northern Territory (No 3) [2016] FCA 900 (the Timber Creek Single Trial Judge Decision.  This decision was appealed to the Full Federal Court of Australia and then to the High Court.

Timber Creek Trial Judge Decision

In the Timber Creek Trial Judge Decision, Mansfield J determined quantum by assessing three components of the compensation entitlement: economic loss, interest on economic loss, and non-economic loss (cultural loss):

  1. Economic value of native title rights and interests: assessed as 80% of maximum freehold value of the affected land.

  2. Interest payable on economic loss: simple interest, payable on the value of the extinguished rights and interests.  Interest is calculated from the time between the date on which the entitlement to compensation arose to date of judgment.  Interest not payable on non-economic component (cultural loss) of compensation award.

  3. Cultural or non-economic loss of $1.3 million: assessed by reference to communal nature and collective ownership of the rights and interests and loss of traditional attachment to land.

In determining the award for cultural loss, Justice Mansfield noted that it is not the function of s 51 of the NTA to compensate for cultural and spiritual pain and anxiety that arises from acts or events that occurred before the acts that trigger the claim for compensation (known as “compensable acts”).  On the facts in this case, three important considerations guided assessment of the compensation amount:

(1) construction of structures along part of significant dream track;

(2) some compensable acts impaired native title rights and interest in a larger area than that physical parcels of land in which the acts were done (i.e. the ability to conduct ceremonial and spiritual activities in surrounding areas); and,

(3) combined, incremental affect of each compensable act on spiritual connection with particular parcels of land which “contributed to the sense of failed responsibility” to care for country.

Timber Creek Full Federal Court Decision

On appeal to the Full Federal Court in Northern Territory of Australia v Griffiths [2017] FCAFC 106, the findings in the Timber Creek Single Judge Decision were generally upheld. The Timber Creek Full Court endorsed the trial judge’s approach to valuing economic loss by comparison to the value of freehold title. However, the Full Court concluded that the value of those rights and interests should be discounted because native title is inalienable – a characteristic which distinguishes native title rights and interest from freehold.  The Court concluded that the appropriate economic value of those rights and interests was 65% of the value of free hold title (rather than 80%). Significantly, The Timber Creek Full Court Decision did not alter the amount awarded for non-economic loss.

Timber Creek High Court Decision

On appeal, a full bench of the High Court in Northern Territory of Australia v Griffiths [2019] HCA 7 agreed with the Full Federal Court’s approach to valuation, but reduced the economic loss component from 65% to 50%.  The compensation entitlement for non-economic loss was upheld.  The High Court accepted the Trial Judge’s finding (also accepted by the Full Court) that, compound interest should not be precluded as a possibility in a claim for compensation under the NTA.  The High Court left open the possibility for an award of compound interest, noting that there may be circumstances where an award of damages for loss of use of money or to compensate for expenses incurred may be appropriate.

DECISIONS ABOUT NATURE OF NATIVE TITLE RIGHTS AND INTERESTS

Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238

Facts

  • Determination in May 2018 in favour of Bindunbur native title claim group (Bindunbur determination) and the Jabirr/Ngumbarl native title claim group (Jabirr Jabirr determination).
  • A consequence of the Jabirr Jabirr determination was that the claimant application of the Goolarabooloo native title claim group was dismissed.  In relation to this, primary judge held that rights and interests arising from a rayi (Rayi) connection held by a Goolarabooloo person are not native tile rights and interests for purposes of the NTA.
  • The appeal from Goolarabooloo group asserted that individuals with an acknowledged Rayi attachment to places or animals in the Jabirr Jabirr determination area, or senior law men with ritual responsibility, can also be said to have native title rights and interests in that area.  That is, persons who hold a Rayi connection and ritual leaders should be recognised as native title holders, even if they are not descended from traditional owners.

Decision

  • Socially recognised rights are not a right or interest in relation to land or waters for purposes of s 223 NTA.  Rights of Rayi holder are analogous to the reciprocal rights considered in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33 and are personal in nature.
  • Public access and enjoyment of beaches and other places not “other interest” for purposes of s 225(c) of the NTA.

Reasons for Decision

Assessing the nature of the Rayi connection, the Court found that:

  • A Rayi connection holder could not speak for country, but was required to seek permission from descent-based owners to access and use the area associated with the Rayi event, and in instance of serious wrongdoing by a Rayi connection holder, permission could be withdrawn.
  • Any right or interest conferred by a Rayi association is subject discretion of the rights holders by descent.
  • Therefore, Rayi derived rights are not in relation to land or waters (as per the formulation of native title rights and interests in s 223(1)), rather rayi rights are held in relation to persons.

The findings of the Court in this case suggest that, where rights held are mediated by and require authority from, a personal relationship with a primary native holder, who may grant or withhold permission, rights cannot be said to be native title rights for purposes of s 223 NTA.

DECISIONS ABOUT ILUA REGISTRATION AND CERTIFICATION

Northern Land Council v Quall [2019] FCAFC 77 (Quall)

This decision examined the functions of native title representative bodies under the NTA and in particular, the certification function in s 203BE(1)(b).  This section allows representative to provide a certification to the Native Title Registrar that all persons who hold, or may hold, native title have been identified and that those persons have authorised the making of an Indigenous Land Use Agreement (ILUA).  A key issue in this case was whether the certification function in s 203BE(1)(b) could be delegated.

Note that the NTA does not specifically authorise a representative body to delegate its powers or functions. So, an important question raised in this case was whether a power to delegate could be inferred from s 203BK of the NTA, which provides a general power to do “all things necessary and convenient to be done for or in connection with the performance of its functions”

Facts

  • In 2016, Northern Land Council (NLC) and Northern Territory agreed upon an ILUA concerning the Cox Peninsula near Darwin (Kenbi ILUA).
  • In March 2017, NLC’s Chief Executive Officer (CEO) signed certificate to certify ILUA for the purposes of s 24CG(3)(a) of the NTA.
  • Certificate stated that opinions on factual matters relevant to certification criteria in ss 203 BE(5)(a)-(b) and (6)(b) were given by NLC. These provisions of the NTA require the representative body to form and provide opinion confirming that all reasonable efforts have been made to ensure persons who hold (or may hold) native title have been identified, and that those persons have authorised the agreement.
  • The certificate stated that NLC itself certified ILUA, whereas the document was executed and the certification made by CEO in his capacity as delegate of the NLC, not by the NLC.  The CEO’s authorisation to certify was given in a resolution passed by the NLC that delegated the functions to the CEO.
  • The Applicants argued that a representative body’s certification function in s 203BE(1)(b) could not be delegated.

Decision

  • Certification function cannot be delegated.  Subsection 203BE(1)(b) requires NLC itself to hold and state an opinion on the matters set out in ss 203 BE(5)(a)-(b).
  • Subsection 203BK(1) does not give a representative body the power to delegate its functions.

Analysis

  • Key considerations:
    • roles and responsibilities of representative body;
    • nature and character of certificate functions vested in representative body; and
    • role and significance of registration of area ILUA to which certification function relates.
  • The phrase “necessary and convenient” does not give a representative body the power of delegation; s 203BK allows a representative body to obtain services to assist it in performing its functions.
  • The absence of an express power of delegation in NTA and fact that 203B(3) specifically excludes arrangements (subject to some exceptions) under which another person is to perform functions, reinforces the view that functions are to be performed by representative body itself and not someone else.

 

Bright v Northern Land Council [2018] FCA 752

Facts

  • NLC certified ILUA covering lands and waters within Town of Batchelor in Northern Territory.  Application for registration lodged with NNTT pursuant to 24CG(1) of the NTA.
  • On 9 September 2015, the last day of notification period, NNTT received 19 formal objections under s 24CL.  Objectors for Rak Mak Mak clan claimed that, despite holding native title in ILUA area, they had not been identified as native title holders and had not authorized ILUA.
  • Objectors lodged application under s 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of NNTT’s decision in May 2016 to register ILUA.  Specifically that:
    • Delegate had taken into account an irrelevant consideration by (a) having regard to grant by Mansfield J of leave to discontinue the Batchelor NO 3 claim and (b) relying on anthropological material not obtained for the purposes of s 203BE(5) of the NTA.
    • No other evidence or material to justify the Delegate’s decision.
    • Exercise of the power by the Delegate so unreasonable that no reasonable person could have exercised it the same way.

Decision

  • Reliance on anthropological material and conditions of grant of leave were matters capable of bearing upon Delegate’s assessment of whether all reasonable efforts made to identify persons who hold, or may hold, native title.
  • No submissions to support applicant’s contentions that no other evidence or other material to justify delegates decision or that decision so unreasonable that no reasonable person could have exercised it the same way.

Analysis

  • Term “who… may hold native title” in s 203BE(5)(a) of the NTA incorporates notion of reasonableness.  It should be understood as though it read “or who may, reasonably considered, hold native title”.  Mere assertion of native title is not sufficient for person to be regarded as one who “may hold” native title.  The term refers to a person who, although not yet recognised, should be regarded as potential native title holders.
  • Section 203BE(5) contemplates that the persons who hold or may hold native will be finite and, further, may be identified by the making of all reasonable efforts.  The section leaves open the possibility that, despite all reasonable efforts having been made, some persons who may hold native title may not be identified.
  • Whether “all reasonable efforts” have been made is a question of fact, determined on the circumstances of the case.  Much may depend on the extent to which native title in the areas has been the subject of previous research, investigation or report.  In such cases, comparatively little additional research may be required to form an opinion for the purposes of s 203BE(5) of the NTA.

DECISIONS ABOUT FUTURE ACTS

Tjungarrayi v Western Australia; KN (dec’d)

Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12

These decisions relate to s 47B of the NTA which provides that certain categories of historical acts done on vacant crown land that extinguish native title can be disregarded.  However, if at the time of making the application, any parts of the claimed land are covered by a lease (or other interest that is listed in s 47B(1)(b)), the rule in s 47B will not apply in relation to those areas. This means that, where there is lease covering all or some of the area and there have been acts which extinguish native title in those areas, s 47B cannot be applied to allow native title to be ‘revived’ in those areas where the extinguishing acts occurred.

These cases considered whether permits and licenses granted to extractive industry are “leases” because if considered a “lease”, the non-extinguishment rule in s 47B(2) of the NTA does not apply.

Facts

  • Two appeals from the Full Court of the Federal Court of Australia relating to exploration permits and exploration licenses for mining activities.  In each case, the claim groups asserted that a right to exclusive possession could be recognised if historic extinguishment resulting from grant of mining tenements is disregarded under s 47B of the NTA.
  • Earlier court proceedings considered whether petroleum exploration permit and mineral exploration license were a “lease” for purposes of s 47B(1)(b)(i) of the NTA.  Earlier courts in both cases concluded that the licenses and permits were interests sufficient to prevent the extinguishment of native title from being disregarded.
  • The court approached interpretation by looking at the definition of “mine” in s 253 which includes activities to explore or prospect for things that may be mined (i.e. extracting gas or petroleum).  The court concluded that “mining lease” in s 245 of the NTA should be given same meaning as “mine” in s 253 of the NTA.  Therefore, a tenement that permitted the lessee to use land solely or primarily for exploring or prospecting for things that may be mined was a lease that permitted use of the land “solely or primarily for mining”.
  • Applying s 242(2) of the NTA, this meant that expression “mining lease” also included a license issued or authority given under Commonwealth, State or Territory law.

Decision

  • High Court rejected Full Court’s conclusion that s 242(2) of the NTA operated to make a mining or petroleum exploration tenement (a form of statutory license or authority) a “lease” for purposes of s 47B of the NTA.
  • Exploration tenements are not leases for the purposes of s 47B(1)(b)(i).

Reasons for Decision

  • Subsection 242(2) of the NTA states “in the case only of references to a mining lease” – this a condition that is required for the provision to apply.  Therefore, the provision is engaged only where relevant provisions of NTA contain an express reference to a “mining lease”.
  • Rights conferred by exploration tenements are not treated by the general law as inconsistent with continued subsistence of ordinary freehold title; it is not to be supposed that the NTA treats native title rights and interests less favorably in absence of that intention.

For more information about recent developments or their application, please contact Michael Pagsanjan at info@mpslaw.com.au.

Guidance note on director duty to disclose interests, conflicts of interest and related party benefits

Directors have a legal duty to tell other directors of “material personal interests”. This article discusses rules governing disclosure of, and voting on matters involving material personal interests and provides guidance on how to assess a material personal interest.

We have also prepared factsheets on related party benefits and conflicts of interest, to help directors of Prescribed Body Corporates (or Registered Native Title Body Corporates) to understand and comply with the law.

 

 


Background

The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) sets out important legal duties that directors must comply with, commonly referred to as “directors’ duties”.  These duties have their origins in decisions made by judges over many years recognising that where there is a special relationship of trust, confidence and reliance, there should be a legal duty (“fiduciary duty”) to put the best interest of others first.

The principle that directors should avoid conflicts of interests and not take advantage of their position for personal benefit is reinforced in the legal duties set out in legislation. 

A conflict of interest occurs when the interests of a director conflict with the best interests of the corporation.  The director’s interests may be personal, professional or business in nature. The conflict arises when there is a “real or substantial possibility of conflict” or a “real, sensible possibility of conflict”.[1]Some conflicts of interests will involve a “material personal interest”.  However, not all conflicts of interests are material personal interests.  Equally, a material personal interest can arise even where there is no conflict of interest.

What does the CATSI Act require?

Section 268-1 of the CATSI Act requires directors to give notice of any material personal interest in a matter that relates to the affairs of the corporation to the other directors.  This requirement does not apply where the interest:

  • arises because the director is a member of the corporation;
  • arises from the director’s salary or payment for their role as a director of the corporation, for example, ‘sitting fees’;
  • arises because the director is a native title holder
  • relates to a contract which requires approval by the members
  • arises only because there is a contract with another corporation and the director is a member of the corporation
  • relates to directors’ insurance against liabilities as officer of the corporation.[2]

What happens after notice of a material interest is given?

A director with a material personal interest in a matter that relates to the business of the corporation is not allowed to be present while the matter is being considered at the meeting or to vote on the matter.[3]

Exceptions to this rule apply where the other directors have passed a resolution stating that they are satisfied the interest should not disqualify the person from voting or being present or where the Registrar has given approval.[4] It is not enough for a director to withdraw from voting – the interest must be disclosed.[5] A director cannot use a material personal interest to exclude themselves from discussions as a way to avoid giving information to other directors that is relevant to the decision; such information may still need to be given to the board to meet the duty exercise reasonable care and skill.[6]

Directors that participate in discussions or vote on a matter in which they have a material personal interest are in breach s 268-20(1) of the CATSI Act and could be fined up to 5 penalty units ($1,050 as of October 2019).[7]  It is a defence to a breach of s 268-20(1) to show that “for any other reason” the interest does not need to be disclosed, for example, the interests arises solely because a director is a common law holder of native title.

When is an interest considered “material” and “personal”?

The interest must be both personal and material.  Not all personal interests are considered material interests that must be disclosed.

Material

  • Whether an interest is personal requires an assessment of the relationship between the advantage or benefit the director may personally expect, and the particular matter being considered at the directors meeting.[8]
  • The interest involves a relationship of some real substance to the matter or decision.   The interest needs to be of some substance or value, rather than just a slight interest or low value.[9]
  • The nature of the interest has the capacity to influence the vote of the director on the decision to be made, and it is a kind of interest that gives rise to a conflict of interest which is real and substantial.[10]
  • The interest can be non-financial and indirect, such as an interest of an associate or relative, where the advantage is substantial.  It is the substance of the interest, its nature and capacity to impact the directors ability to perform their duties which is important.[11]

Personal

  • The interest must be of the directors themselves.
  • It will not be personal if it is an interest of someone else only.
  • The interest may not be personal if it affects the official as a member of a wide group or class and in the same manner and to the same degree that it affects other members of the group or class, for example as a member of the native title holder group

Possible examples

The following may be examples of material personal interests:

  • Approving the purchase of goods or services supplied by the business owned by a director’s family.
  • Participating in decisions on a tender submitted to the corporation where a relative or close friend is also submitting a bid.
  • Participating in negotiations and/or decisions that involve hiring a relative or friend to provide goods or services to the corporation.
  • Involvement in selection of a relative or friend as an employee.
  • Sales of corporation property or asset to a relative or friend.

Giving notice of the interest to the other directors

Notice of a material interest must be given to the other directors as soon as possible after the director becomes aware that they have a material personal interest in the matter.[12] The disclosure must identify the nature and extent of the interest and how the interest relates to the business of the corporation.[13]  As a general rule, this means ensuring that enough information has been given to enable other directors to give informed consent.[14]

Directors can give standing notice of an interest to the directors.  This notice must also provide information about the nature and extent of the interest and how it relates to the business of the corporation. A standing notice can be given at a directors’ meeting, or individually to each director in writing.  However given, the director is responsible for ensuring the nature and extent of the interest given in the notice is recorded in the minutes of the directors’ meeting.

When a new person is elected to the board of directors the notice ceases to have effect until such time that the new director, or directors, are given standing notice of the interest.[15] Standing notice of a conflict also ceases to have effect if the nature or extent of the interest materially increases above that disclosed.[16]

It is important that directors and boards seek advice on directors duties and any issues that are specific to the particular issue being considered. For more information, contact MPS Law at info@mpslaw.com.au.

[1] Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41, 103; Boardman v Phipps [1967] 2 AC 46, 124.

[2] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 268-1(3)(a)(i)-(iii), (vi)-(vii), 268-5.

[3] CATI Act (n 2) s 268-20.

[4] CATI Act (n 2) ss 268-20(4) and (5).

[5] Darvall v North Sydney Brick & Tile Co Ltd (1989) 16 NSWLR 260.

[6] See CATSI Act (n 2) s 265-1.

[7] See Crimes Act 1914 (Cth) s 4AA.

[8] McGellin v Mount King Mining NL (1998) 144 FLR 288, 304.

[9] Grand Enterprises Pty Ltd v Aurium Resources (2009) FCA 513 [68].

[10] McGellin v Mount King Mining NL (1998) 144 FLR 288, 304.

[11] Bell Group Ltd (In liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 at [4509].

[12] CATSI Act (n 2) s 268-1(4)(a).

[13] CATSI Act (n 2) s 268-1(4)(b).

[14] Woolworths v Kelly (1991) 22 NSWLR 189.

[15] CATSI Act (n 2) s 268-10(5).

[16] CATSI Act (n 2) s s 268-10(6).

In-principle agreement reached for landmark deal in WA’s mid-west

An in-principle agreement has now been reached between the negotiating parties for the resolution of several native title claims in Western Australia’s mid-west.

MPS Law joins the Western Australian Minister for Aboriginal Affairs the Honourable Ben Wyatt in congratulating the parties on reaching an in-principle agreement. The Minister’s statement is available here.

MPS Law is honoured to continue advising native title claimants on the proposed resolution of native title claims in Western Australia’s mid-west, covering an area of approximately 48,000 square kilometers; an area larger than European nations like Denmark, Netherlands and Switzerland.

“The process has its challenges and a significant amount of work has been undertaken to reach an in-principle agreement. The opportunities, if the agreement is authorised and registered, will be the yard-stick for agreement making with First Nations in Australia, setting new benchmarks on self-governance, economic development and heritage management” says Mr Pagsanjan, the lawyer for one of the native title claims.

Details remain confidential and the matters continue to be the subject of mediation by a Judicial Registrar of the Federal Court, but according to the joint report filed in the Federal Court, key topics in the agreement are:

 
  1. Recognition, including the recognition of native title rights and other statements on recognition;
  2. Governance structures, including mechanisms for partnerships with Government and the establishment of a single corporate entity and associated entities to represent all Traditional Owners within the settlement area;
  3. Land base, including the transfer of land in freehold or as reserves and agreements about water;
  4. Economic base, including land for economic development, funding for economic development and support for training and employment;
  5. Conservation estate, including the creation of jointly managed parks and the establishment of a ranger program; and
  6. Heritage and culture, including agreements about heritage management.
   

The next step is for all people who hold or who may hold native title to decide whether to accept the agreement. MPS Law strongly encourages native title claimants and all people who hold or who may hold native title in the proposed agreement area to participate in the authorisation process.

For Aboriginal people who identify as Widi, or, for Aboriginal people who assert native title interests in the current Widi Mob native claim area (WAD31/2019), enquiries can be directed to MPS Law.

For more information, please contact Michael Pagsanjan at michael@mpslaw.com.au.

Explanation of a Native Title Determination Claimant Application

Native title is claimed by an Applicant filing a ‘Form 1’. The Form 1 is a court document that sets out basic information about the claim. This is a brief explanation of each section and can be used as a general guide for the preparation of a claim.

 

The Applicant means the person or persons who are authorised by the native title claim group to make the application.  The person or persons are jointly the applicant.  The applicant may deal with all matters arising under the Native Title Act 1993 (NTA).[1]  None of the other members of the native title claim group are the applicant. However, the decision to authorise an application must be made by the claim group.[2]

The Form 1 is available on the Federal Court website.

Native title law and processes are difficult. If you are intending to prepare, authorise and file a Form 1, we recommend you seek legal advice.

Authorisation

At the start of the Form 1, a statement is required that explains that the Applicant has been authorised by the claim group to make the Application. 

An affidavit for each applicant setting out the process of decision-making used to obtain authorisation is required.[3] The affidavit can detail, for example, if meetings were held, or how direct authorisation was given to the applicants by individual claim group members.  The affidavit(s) must also state the following:

(a)   that the applicant believes that the native title rights and interests claimed by the native title group have not been extinguished in relation to any part of the area covered by the application;

(b)   that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title;

(c)    that the applicant believes that all of the statements made in the application are true; and

(d)   that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it.[4]

There are many court decisions and articles on native title authorisation. A helpful summary on relevant principles is available through AIATSIS.

Schedule A – Native Title Claim Group

This Schedule requires a clear description of who is in the native title claim group, so that the Registrar can assess whether any person belongs to the claim group or not.  The native title claim group is all the people who, under traditional law and custom, hold the rights and interests that make up the claimed native title.

Providing information about the claim group

Generally, information to describe or identify the claim group is provided by:

·      a complete list of the names of the people in the native title claim group; or

·      a description of the native claim group with sufficiently clear criteria to define who is a member of the group, for example, descendancy from named ancestors or the whole family tree that includes the full names of the people in the family tree and their birth dates.

Further information about factors required for membership in the claim group is usually attached to the Form 1 and marked ‘Attachment A’.

Schedule B – Identification of boundaries

This Schedule provides a description of the boundaries of the claim so that other people know what area has been claimed.  

A clear statement that the claim extends to only non-exclusive (or exclusive) native title rights and interests is also necessary. Non-exclusive rights are those rights that exist along side other rights, like pastoral activities.

There are two key things that should be included:

1)     a written description of the outer boundaries of the area covered by the application (including the written description as Attachment B, and a map of the claim area as Attachment C); and

2)     the ‘General Exclusions’ from the claim.

The boundaries of the area claimed in the application may be described by:

a)     listing each area, or parcel of land, claimed with reference to Lot or Plan numbers;

b)     giving coordinates of the boundaries of the application area; or

c)      using geographical features, such as rivers, mountain ranges, shorelines or the sea to describe the boundaries, with enough precision to make those outer boundaries clear.

The ‘General Exclusions’ from the claim are those areas within the outer boundary where native title is not claimed.  Generally, these areas are not claimed either because there is already a determination of native title or something has happened with the land that is inconsistent with the exercise of native title rights and interests. Areas where native title cannot be claimed include:

·        residential freehold;

·        farms held in freehold;

·        pastoral or agricultural leases that grant exclusive possession;

·        residential, commercial or community purpose leases; or

·        public works such as roads, schools or hospitals.

Areas where native title is not claimed may be referred to specifically or through a general statement excluding all areas of a particular kind from the area covered by the application.

Schedule C – Maps

This Schedule requires a map of the boundaries of the claimed area. The included map should be sufficiently detailed.

Features of the map should include:

·        a North Point;

·        a scale-bar;

·        the datum used; and

·        a legend displaying any tenure searches conducted.

The map can be included as an Attachment C.

Schedule D Searches

A list of any searches that have been carried out on behalf of the claim group to find out whether there are already rights and interests held by someone in the area other than the native title claimant group. These rights and interest could be, for example, pastoral leases or mining tenements.

If any searches for rights or interests in the area have been conducted, they should be included. These may be tenure documents, a tenure history report, an index or a spreadsheet showing what other rights and interests exist over the area, or a map with a legend that shows in detail the types of tenure identified.

This section is optional. If no searches have been conducted, the section does not need to be filled out.

Schedule E – Description of Native Title Rights and Interests

This is a clear description and list of all native title rights and interests being claimed.

The rights claimed depend on traditional laws and customs and the type of land over which native title is claimed.

(a) What rights and interests may be claimed in relation to the land?

If you are claiming land that has never previously been in the possession of someone outside of the claim group, a right to full possession and occupation of the area to the exclusion of all others (exclusive possession) may be claimed in relation to that area. Exclusive possession includes the right to control access to, and the use of, that area. These sorts of rights may be available for any unallocated or vacant Crown land, some areas already held by, or on the behalf of, native title claimants, as well as certain pastoral leases held by, or on behalf of, any members of the claim group. These sorts of rights will only be available for limited and very specific areas of land.

It is more common to have areas of land over which non-exclusive rights can be claimed. Those rights in relation to that area may include the right to:

·        live;

·        use and enjoy;

·        access;

·        camp or do ceremonies;

·        visit and protect important places, sites and the natural environment;

·        hunt, fish and gather food and resources like water, wood and ochre;

·        trade and exchange resources and goods, although our experience is that this can be difficult to prove; and

·        teach law and custom on country.

In areas over which someone else has previously held the area in exclusive possession, no native title rights and interests can be claimed. These areas may include those where there is:

·        a grant of freehold title;

·        a grant of an ‘exclusive’ pastoral lease;

·        a residential, commercial or community purpose lease; or

·        public works (such as a building of a road).

These different types of rights need to be described separately, so as to make the claimed rights and interests easily understood. It is best to separate native title rights between those being claimed to the exclusion of others (such as the rights to control and refuse access) and those that are not claimed to the exclusion of others (such as the rights to enjoy, use and access land).

(b) What rights and interests cannot be registered?

Certain rights and interests will not be recognised, even if they exist under traditional laws and customs. These include:

·        exclusive rights to fish offshore;

·        excusive possession of offshore areas;

·        rights to ownership of minerals and petroleum; and

·        the right to control the use of cultural knowledge beyond the right to control access to land or waters.

Schedule F – General Description of Native Title Rights and Interests

A general description of the facts that support the claim to the native title rights and interests listed in Schedule E. The description must be clear enough to prove that the group exists, and has existed, as a distinct community. Facts should be provided to show:

1)     that the group and its ancestors have an identifiable connection to the land claimed;

2)     that the group and its ancestors possess rights and interests under traditional laws and customs that the group observes; and

3)     that the group continues to hold native title in accordance with those traditional laws and customs.

1. The group has an identifiable connection to the land claimed

The facts should show that the whole group has a connection with the whole claim area. A connection to the whole area by the whole group may be demonstrated with facts showing the connections that multiple claim group members have with several places within the claim area.

The facts must also show that the ancestors of the claim group had a connection with the area since the time of sovereignty, or, if this is too difficult to prove, at the time European settlers first arrived in the area.

The description can detail instances when the group’s connection has been recorded, and what those records consist of. This may be early settler or explorer accounts, reports, correspondences or any other historical document that mentions the ancestors of the ancestors of the group and their connection to the area.

The description might also include a list of traditional activities that demonstrate the group’s ongoing connection with the claimed lands and waters. These could include hunting, fishing, conducting ceremonies, or any other relevant activity.

These details of the group’s society before sovereignty, their acknowledgement and observation of laws and customs, and their continuing traditional association with the claimed land may be included as an ‘Attachment F’. Anthropological reports and affidavits of native title claim group members can be included.

2. The claimed rights and interests exist under traditional laws and customs

The facts should show that there were, and continue to be, traditional laws and customs followed by the group that give rise to traditional rights and interests over the area.

‘Traditional’ means that the laws and customs must have existed at the time the British first asserted sovereignty over the claim area, and have continued to exist among the group up until the present. Those laws and customs must also be ‘normative’, meaning that the members of the group are bound by them as standards of conduct.

Laws and customs may include standards of conduct such as rules around hunting, marriage, and the use of laws and mechanisms that were and are in place to regulate those rules (such as punishment and education).

The information provided should be sufficiently detailed to capture all those rights and interests that have been listed in Schedule D.

3.  The group continues to hold native title in accordance with traditional laws and customs

Information should show that the group continues to hold the claimed native title rights and interests in accordance with its traditional laws and customs. Any information which shows that at any time the group had stopped acknowledging and observing traditional laws and customs may suggest that those laws and customs are no longer ‘traditional’.

The facts that demonstrate the holding of the native title rights and interests claimed in Schedule E may include such things as:

·        recognition of common ancestors;

·        traditional systems of communal title to lands and waters through connection with certain ancestral beings and stories;

·        transmission of native title rights and interests according to traditional laws and customs; and

·        recognition of the individuals’ connection to land and waters through their place of birth and through their mother’s, father’s and grandparent’s place of birth.

Activities that demonstrate a continuing connection to the area through traditional laws and customs may include such things as:

·        caring for country;

·        controlling access to country; and

·        holding ceremonies on country.

Any such laws and customs should be particular to the claim group, and not general enough to apply to all groups.

Schedule G – Activities

This is to list and detail any activities the native title claim group members do on the claimed area in accordance with traditional laws and customs. This may involve repeating any of the activities already listed at Schedules E and F.

The details should be accompanied by evidence of the activities, as well as of the group’s current observance of traditional laws and customs. The evidence should relate directly to the listed activities. This is often achieved by affidavits from members of the claim group, detailing examples of the activities currently carried out in the claim area.

Schedule H – Details of any other applications

This schedule is to include any known overlapping native title applications. The National Native Title Tribunal (NNTT) can provide help to identify existing native title applications.[5] A copy of any NNTT overlap analysis that has been provided can be included in the Schedule.

Schedule HA – Details of Section 24MD notices

This schedule is to include details of any notices issued by the government which relate to any part of the claimed area.[6] These notices are made where the government requires compulsory acquisition of native title rights and interests.

This section does not apply where no known notice has been issued in relation to the claimed area.

Schedule I – Details of section 29 notices

This section is to include any notices issued by the government in relation to the claim area which describe the government’s intentions to let certain things happen on land,[7] such as where it intends to grant a mining lease.

An overlap analysis from the NNTT that details such notices may be included as an Attachment I.

Schedule J – Draft orders

This section is to include a description of how the Court should describe the native title in a determination if the application is unopposed.

In reality, the relevant State Government will become a party to the application when it is made. As a result, it can be written: ‘The application is not unopposed’.

Schedule K – Native Title Representative Bodies

This schedule is to include the name of each representative native title representative body for the application area. This information is available from the NNTT Registrar.[8]

Schedule L – Tenure and land issues

This is to describe any areas over which the benefits of sections 47, 47A or 47B of the NTA apply. If any of these sections apply to an area, then extinguishment of native title can be disregarded.

In many cases, these areas may not yet be known at the time of filing a claim.

Schedule M – Traditional physical connection

This schedule is to include the details of any land or waters in the application area where one or more members of the claim group has a traditional physical connection. Usually, there is no need to include any supporting material beyond that already included in Attachments F and G.

Schedule N – Prevention of access

Details of any member of the claim group having ever been prevented from going onto any part of the application area can be provided in this section.

The Schedule is optional, and there are no benefits to claimants in completing it.

Schedule O – Membership of any other claim groups

This schedule is to include details of any member of the native title claim group who is a member of any other native title claim group that has made an application over the whole or parts of the application area.

An application will not be registered if there is an overlapping claim if the Registrar is satisfied that:

·        a person included in the claim group is a member of a claim group for an application that overlaps, in whole or in part, the application area;

·        the overlapping application was on the Register of Native Title Claims (i.e. it was registered) when the current application was made; and

·        the previous application was on the register, or was not removed from the register, because it had passed the registration test conditions.[9]

Schedule P – Claims for exclusive possession of offshore places

This schedule is to include details of any claim to exclusive possession of an offshore place. This is only relevant for claims that are coastal.

It is important to note that applications containing a claim to native title rights and interests in relation to waters in offshore places that exclude all other rights and interests cannot be registered.[10] It is for this reason that it is necessary to include a clear statement that the claim does not extend to this kind of interest if it is not claimed.

An ‘offshore place’ is defined as those lands or waters that are not within the limits of a state or territory, such as waters beyond the territorial sea.

Schedule Q – Claims to any resources owned by the Crown

This schedule is to include the details of any claim to ownership of minerals, petroleum or gas wholly owned by the Crown.

Similar to the consequences mentioned in regards to Schedule P, applications claiming native title rights and interests to the ownership of minerals, petroleum or gas wholly owned by the Commonwealth, state or territory governments cannot be registered.[11]

For this reason, it is necessary to include a clear statement that the claim does not extend to the minerals owned by the Commonwealth, state or territory governments.

Schedule R – Certification of authorisation

If the application is certified by a native title representative body for the application area, a copy of the certificate, can be included as an ‘Attachment R’.

If the application is not certified, information needs to be provided on how the people listed as ‘the applicant’ have been authorised by the members of the claim group to make the application and deal with matters arising in relation to it.

This requires a statement that the person listed as the applicant in the application:

·        is a member (or are members) of the native title claim group; and

·        is (or are) authorised to make the application by the native title claim group and act on their behalf in relation to the application.

This should be accompanied by reasons.

Where there exists a decision-making process under its traditional laws and customs, then that process must be used to authorise the applicant.

If the claim group does not have a traditional decision-making process when making decisions of this kind, then it must agree on, adopt, and use a process for making the decision about who to authorise to make the application on the group’s behalf.

For this reason, it is advisable to include as much information about the authorisation process as possible. It should be clear if the decision-making process used is part of traditional laws and customs, or whether the group has adopted a specific process to make the decision about who to authorise to make the application. If there is not enough space in the Schedule to include such information, it can be provided as Attachment R.

The information must show:

·        that the applicant(s) is a member of the native title claim group;

·        that the applicant(s) is authorised by all the native title claim group members to make the application and to deal with matters arising in relation to it;

·        which decision-making process was used (i.e. traditional and customary or agreed to and adopted for the purposes of authorisation);

·        and why the Registrar should be satisfied that the applicant has been authorised by the claim group to make the application and do things in relation to it.

Schedule S – Amended applications

This schedule is to include the details of any amendments made to the application, and what the changes are. If the application is new, this Schedule is not applicable.

Schedule T – Any other relevant application

This Schedule asks for any other information relevant to the application.

This Schedule is optional, and it is usually unnecessary to provide further information if the Form 1 has been completed properly.

Conclusion

This article has summarised the Form 1 for claiming native title. Once an application is properly authorised, the Form 1 is filed in the Federal Court of Australia, assigned to a Judge and referred to the NNTT. The NNTT then applies the registration test and gives notice of the claim. If the NNTT registers the claim, the claim group will have procedural rights. However, this does not mean that native title rights have been recognised. Rather, the claim group will still need to provide evidence to prove that those native title rights should be recognised. This could be through a trial, or, through an agreement. We suggest to always first attempt to reach an agreement rather than going to a trial. Ultimately, though, the claim group and the respondents (parties who respond to the claim, like the relevant State), will need to follow the orders of the Federal Court of Australia about how the claim should be progressed.

If a claim group is considering preparing, authorising or filing a Form 1, legal advice should be sought. We also recommend that claim groups contact the relevant native title representative body for the region to discuss any facilitation or assistance that may be required.

For more information, contact MPS Law Principal, Michael Pagsanjan, at michael@mpslaw.com.au.

 

[1] Native Title Act 1993 (Cth) (NTA) s.62A.

[2] NTA s.62(1)(a)(iv).

[3] See NTA s.251B describes the process for obtaining authorisation for an application.

[4] NTA s.62(1).

[5] Information about assistance can be found at www.nntt.gov.au

[6] NTA s.24MD.

[7] NTA s.29.

[8] Assistance is available at www.nntt.gov.au

[9]NTA s.109C(3).

[10] NTA s.109(C)(9)(b).

[11] NTA s.190B(9)(a).

 

End of Financial Year Update

It is hard to believe that we are approaching the end of the 2018-2019 Financial Year. As part of our process of continual review, we have paused to reflect on MPS Law’s growth and achievements in the past twelve months.

 

Performance

In the 2018-2019 financial year, the most profound examples of MPS Law’s performance were:

  • In native title; the negotiation of a large-scale land settlement.
  • In commercial law; the ongoing advice on commercial transactions and legal compliance for Aboriginal corporations and its associated commercial and charitable entities.
  • In dispute resolution; the continued success of utilising mediation to resolve intra-Indigenous disputes and native title matters, with MPS Law participating in over thirty days of mediation around Australia. In a space known for delays, lack of resources and imbalances of power, MPS Law is reshaping the way such disputes are dealt with in the Federal Court of Australia.
  • In strategic partnering; the negotiation of a project in South Australia’s Far North involving several Aboriginal corporations, Commonwealth and State Government departments.

Practice milestones

MPS Law’s clients continue to grow organically, nation-wide, by exceeding client expectations and meeting the challenges of working in remote and isolated locations with clients who may speak English as a second language. Despite these challenges, MPS Law facilitated over thirty meetings with traditional owners in the 2018-2019 financial year.

To serve that growing client base, MPS Law:

  • Established a larger office in the Adelaide CBD;
  • Upgraded IT infrastructure and security;
  • Implemented state-of-the-art practice management software;
  • Appointed interstate consultants;
  • Employed two additional lawyers;
  • Employed additional support staff.

MPS Law also acquired a sole practitioner practice, based in South Australia, which also specialises in native title. This will likely double MPS Law’s work within the next two years.

Milestones for MPS Law’s success can’t be measured by the usual commercial metrics. Indeed, the majority of MPS Law’s clients rely on pro bono services or limited government funding which is substantially below commercial rates and court scales. In any event, for the 2018-2019 financial year, MPS Law recorded approximately 1800 billable hours and 300 pro bono hours.

Contributions to profession and commitment to the community

Achievements in this space are difficult. We know our Indigenous clients prefer face-to-face engagement, from meetings in lounge rooms, to their local community halls, on their country and on their terms. This resulted in MPS Law travelling to opposite corners of the country, from meetings in remote Western Australia, far north South Australia and the Torres Strait, covering approximately 150,000 kms – that’s enough to travel around Australia’s coastline almost six times!

MPS Law continues to develop native title law, including assisting clients to understand the High Court first native title compensation decision, handed down earlier this year. This includes, for example, contributing to community radio to provide a plain-English explanation of the decision and what it means for Indigenous communities.

MPS Law Principal Michael Pagsanjan also authored the handbook for interns for the Aurora Program – a national program that places legal and anthropological interns in native title organisations. MPS Law also observed greater media coverage of a previous project that Michael was involved with relating the recognition of the Waterloo Bay massacre on South Australia’s West Coast.

Some of these advancements resulted in MPS Law’s Principal Michael Pagsanjan being awarded the 2018 Young Lawyer of the Year for contributions to the profession and community.

In May 2019, Michael Pagsanjan was shortlisted as a finalist in the InDaily 40-under-40 awards, recognising South Australia’s top business leaders and entrepreneurs under the age of forty.

Feedback is telling us we’re on the right track, with some recent testimonials commenting that:

  • “Widi Mob have no hesitation in recommending MPS Law and wish to express our satisfaction in the service we have received that we consider to be of the highest level and is above and beyond anything we were expecting…” Kathleen Pinkerton, Widi Mob native title applicant.
  • “I think it is safe to say that we are impressed with the law firms [sic] effort so far in getting the desired outcome for all Mualgal. “ Iona Manas, Mualgal RNTBC Chairperson.
  • “Heading up MPS Law [Michael Pagsanjan] has fashioned it into a vibrant practice and a shining example of how a boutique law practice can bring credit to us all within the legal profession.” Greg McIntyre, Senior Counsel.
  • “MPS Law is unique in its ability to match quality legal advice, cultural awareness and collaborative lawyering. It is for this reason that I have no hesitation in referring people to his practice.” Leah Cameron, Principal Solicitor, Marrawah Law.
  • “Michael Pagsanjan, the principal of MPS Law, is a pre-eminent native title practitioner with a national practice… I hold the firm in the highest regard, and unhesitatingly recommend the firm…” David Yarrow, Barrister.
  • “The indigenous people of Australia are fortunate to have such a bright, dedicated lawyer in their corner when combatting large, well-resourced parties who are their typical adversaries.” Anthony Neal, Queens Counsel.
  • “The product provided by MPS Law has been of a uniformly high quality and delivered on time and on budget…MPS Law is a beacon of best practise and propriety.” Tim Wishart, Principal Legal Officer, Queensland South Native Title Services.

For more information, contact Michael Pagsanjan at michael@mpslaw.com.au.